CSPA & Derivative Asylees: A Risk Assessment

This article aims to assess the risks associated with aging out during the Asylum process. Generally speaking, the Child Status Protection Act (CSPA) provides protection for children immigrants who turn 21 during the processing of their case with USCIS. The CSPA’s purpose is to prevent children from aging out due to long processing times at USCIS by freezing their birth date on the day an application is filed with USCIS. It is crucial to understand that the CSPA does not apply in all situations and that the CSPA’s application is often a matter of interpretation. Consulting with an attorney to assess whether the CSPA applies in a given case is my sincere recommendation.
In regards to Asylum, the CPSA’s effects are not clearly stated in the law. There is an interplay between the CSPA, which was passed by Congress, the Code of Federal Regulations, which are promulgated by the Department of Homeland Security, and policy memorandums, which attempt to clarify the CSPA. Because there are multiple sources of law discussing the same issue, the effects of the CSPA on Asylum cases are reliant upon the interpretation of Immigration Officers and the Board of Immigration Appeals.
The Code of Federal Regulations states the following regarding I-730 Approval Notices:
“The approval of the Request for Refugee/Asylee Relative[, I-730,] will remain valid for the duration of the relationship to the asylee and, in the case of a child, while the child is under 21 years of age and unmarried, provided also that the Principal’s status has not been revoked.” 8 CFR 208.21.
The day after CSPA was signed into law in August of 2002, the Department of Justice issued a policy memorandum which attempts to explain the CSPA’s effects on Asylum. The memorandum states in part, the following:
“As a result of [the CSPA], children who turn 21 years of age after an asylum application was filed but prior to adjudication are still considered to be eligible for derivative asylum status.”
So based on the above language, the CSPA will provide some protection for children who age-out during the adjudication of the I-589, but it is unclear how long the protection lasts. Keep in mind, once a Principal Asylee’s I-589 is approved, the Principal Asylee has two years to file I-730’s for each of his derivatives (spouse and children). There are humanitarian exceptions to the two year requirement, but applicants have a very high burden to qualify for the exception.
An Immigration Officer will have to interpret whether the CSPA gives protection for the full two year time limit or a less amount of time given the circumstances. For example, if a child turns 22 while the Principal’s I-589 is pending, but the Principal waits to file for his child’s I-730 until the final month of the two year limit, then an Immigration Officer has to decide if the CSPA applies. On the one hand, there must be some amount of time given for the Principal to apply for their child, because if no time is given, then the Department of Justice’s Policy Memorandum has zero practical effect. On the other hand, if you wait until the last second to file the I-730 on behalf of your derivative, then the delay has nothing to do with government processing times, and the purpose of the CSPA is to protect people from lengthy government processing times.
Given these considerations, it is safest to file for the derivative relatives as soon as possible, once the Principal’s I-589 is approved. If you push the two-year limit, and your child is over 21 years old, there is no current certainty under the law that your derivative will be given the protections of the CSPA.